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12 December 2018Copyright

AG spells out rules on phonogram sampling in Kraftwerk case

Using electronic equipment to sample a phonogram and incorporate that sequence into new material without permission constitutes IP infringement, an advocate general (AG) of the Court of Justice of the European Union (CJEU) said today.

In this context, a phonogram is a fixation of sounds protected not by the arrangement of those sounds, but on account of the fixation itself, AG Maciej Szpunar explained.

The CJEU does not have to follow the AG's opinion, but does in most cases.

The case centres on a song called “ Metall auf Metall” (Metal on Metal), which was released in 1977 by German electronic band Kraftwerk. Founded by Ralf Hütter and Florian Schneider, Kraftwerk use repetitive rhythms and computer speech software in their music.

Kraftwerk claimed that rap artist Moses Pelham had used a sample of the song without authorisation in a track called “ Nur mir” (Only Mine), which was performed by rapper Sabrina Setlur.

The copied section comprised approximately two seconds of a rhythm sequence from “Metall auf Metall”, which Pelham incorporated as a recognisable continuous loop in his own track.

Germany’s Federal Court of Justice (the Bundesgerichtshof) found in favour of Kraftwerk in 2012, but the decision was overturned by the Federal Constitutional Court of Germany (the Bundesverfassungsgericht) in 2016.

The Bundesverfassungsgericht said that any negative effect that Pelham’s actions had on the band were not sufficient to outweigh artistic freedom, and referred the case back to the Bundesgerichtshof for it to reassess the case.

However, the Bundesgerichtshof stayed the matter and referred a number of questions to the CJEU.

Today, Szpunar said that the phonogram is protected as an indivisible whole by copyright.

Although a sound or word cannot be monopolised by one author, but a recorded sound or word can fall within the scope of copyright protection, he said, meaning that the right to reproduce that recording falls exclusively with the producer of that phonogram.

Producers can choose to sell copies of the phonogram or authorise sampling. To take a phonogram for the purpose of using it in another phonogram without the producer’s permission infringes that exclusive right, the AG explained.

Szpunar also confirmed that EU law precludes provisions in member states’ national law which allow work to be freely used in another work without the author’s consent.

He said that EU copyright law sets out exceptions and limitations to copyright, but member states are not authorised to extend the scope of these exceptions.

One exception in EU law allows for the quoting of other material, but Szpunar said that this does not apply in these proceedings. A quotation must indicate its source, including the author’s name, but Pelham had instead taken extracts from a work to be used as raw materials in new works of his own.

Finally, the AG today confirmed that the exclusive right of phonogram producers to authorise or prohibit the reproduction of their phonograms, in the context of sampling, is not contrary to the fundamental rights of freedom of expression and freedom of the arts.

Copyright and related rights establish a certain monopoly over IP or artistic property, Szpunar said, which  probably restricts the exercise of these rights. But IP itself is protected as a fundamental right to property, and a balance must be struck between these rights.

For example, Pelham could have obtained a licence to use the phonogram, and this does not restrict his freedom to a degree which extends beyond normal market constraints, the AG said.

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Copyright
1 June 2016   German electronic band Kraftwerk has lost a copyright infringement dispute at the Federal Constitutional Court of Germany.